Mohd. Azeem Vs. Dlstrlct Judge &
Ors [1985] INSC 95 (23 April 1985)
MISRA RANGNATH MISRA RANGNATH DESAI, D.A.
CITATION: 1985 AIR 1118 1985 SCR (3) 844 1985
SCC (2) 550 1985 SCALE (1)1097
ACT:
Uttar Pradesh Urban Buildings (Regulation
Letting, Rent and Eviction) Act 1972, section 12 (3) read with section 3 (a)
and 3 (g)-Interpretation of the phrase "if the tenant or any member of his
family" occurring therein-Deemed cessation of the tenancy and Deemed
vacancy of the tenanted premises, when occurs, explained-Right to occupy the
tenanted premises by the heirs under section 12, clarified.
HEADNOTE:
Under section 12 (3) of the Uttar Pradesh
Urban Buildings (Regulation of Letting, Rent and Eviction Act, 1972. ' in the
case of a residential building, if the tenant or any member of his family
builds or otherwise acquires in a vacant state, or gets vacated residential
building in the same city, municipality, notified area or town area in which
the building under tenancy is situate, he shall be deemed to have ceased to
occupy the building under his tenancy: ...".
'Tenant' ac cording to the definition in
clause (a) of section of 3 the Act in relation to a building means: 'a person
by whom its rent is payable, and on the tenants' death (1) in the case of a
residential building, such only of his heirs as normally resided with him in
the building at the time of his death; (2) in the case of a non-residential
building, his heirs.' Under clause (g) of section 3 of the Act, 'Family' in
relation to a land lord or tenant of a building means: "his or her-(i) sp
(ii) male lineal descendants; (iii) such parents, grand parents and any
unmarried or widowed or divorced or judicially separated daughter or daughter
of a malelineal descendant, as may have been normally residing with him or her,
in and includes in relation to a landlord, any family having a legal right of
residence in that building." One Manzoor Hussain a tenant of the suit
premises located at Aligarh died in 1969, leaving behind a widow and three
sons-Mohd. Azeem (the appellant), Mohd. Naim, Mohd. Nadeem-and a daughter
Nauzhat, who continued to live in the tenanted premises on payment of rent by
the appellant. The Rent Control Inspector submitted a report on June 22, 1983
that Naim, appellants' brother, had built a house in 1978 or 1979 and,
therefore, the tenancy must be deemed to have terminated in view of the
provisions contained in section 12 of the Act. The prescribed Authority ordered
the eviction in spite of the contest that under section 12 the right to occupy by
other heirs continued. The revision before the District Judge failed and the
writ petition filed in the High Court of Allahabad was dismissed in limine, in
view of the Full Bench decision of that High Court in the case of Smt. Rama
Devi Shakya and Anr. v. The 907 Additional District Judge, Lucknow & Anr.,
1981 Allahabad Rent Cases 305. Hence the appeal by special leave of the Court.
Allowing the petition, the Court, ^
HELD: 1.1 When tho Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 defines
"tenant" and "family" reference to personal law is
irrelevant and the concept of joint tenancy is foreign, Therefore, when one of
the members of the family built a house or moved into a vacant premises (other than
the tenanted premises in occupation) it cannot be said that there was a deemed
cessation of the tenancy and a deemed vacancy occurred of the tenanted
premises.
1.2 It is true that the legislative purpose
behind section 12 appears to be in keeping with the scheme of the Act-making
available as much accommodation as possible for allotment to needy persons.
That being the purpose, the legislature could not have intended to render
persons rehabilitated in tenanted premises homeless.
1.3 As the definition of "tenant"
in clause (a) of section 3 indicates, on a tenants' death his heirs as normally
resided with him would also be tenants qua residential buildings. The
definition does not warrant the view that all the heirs will become a body of
tenants to give rise to the concept of joint tenancy. which heir satisfying the
further qualification in section 3 (a) (1) of the Act in his not right becomes
a tenant and coming the section 12 (3) of the Act, the words "the tenant
or any member of his family" will refer to the heir who has become a
tenant under the statutory definition and members of his family. If everyone's
interest was to be wiped out, section 3 had to provide differently and instead
of 'he shall be deemed to have ceased to occupy the building under his tenancy'
as occurring in sub-section, (3) would have been made to all the tenants in
section 12. Family' having been defiled, for convenience in the facts of the
present appeal qua Naim, the definition Would cover Naim's wife, his male
lineal descendants, his mother and those who are covered by clause (iii) in the
definition of family. It would not by any stretching embrace the appellant or
his brother Nadeem and the sister. Therefore, when Nadeem built a house and
shifted to it, the tenancy of the appellant and his brother along with their
mother and sister did not terminate.
Smt. Rama Devi Shakya and Anr. v. the
Additional District Judge, Lucknow & Anr, 1981 Allahabad Rent Cases 305
overruled.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 360
of 1985.
From the Judgment and Order dated 23.5.1984
of the Allahabad High Court in W.P. No. 4230 of 1984.
Shakeel Ahmed Syed for the Appellant.
I.S.. Sawhney for the Respondents.
908 The Judgment of the Court was delivered
by RANGANATH MISRA, J. The appellant, who filed a writ application before the
Allahabad High Court assailing the revisional order of the District Judge of
Aligarh, is in appeal by special leave.
One Manzoor Hussain was admittedly the tenant
of a premises located at Aligarh. He died in 1969 leaving behind a widow and
three sons-Mohd. Azeem (the appellant), Mohd.
Naim, Mohd. Nadeem and a daughter-Nuzhat. The
widow and the sons and the daughter of Manzoor continued to live in the
tenanted premises on payment of rent. It is the case of the appellant that
being the eldest member of the family he was paying that rent. The Rent Control
Inspector submitted a report on June 22, 1983, that Naim, appellant's brother,
had built a house four or five years before in Amir Nisan, a part of the city
of Aligarh and, therefore, the tenancy must be deemed to have terminated in
view of the provisions containd in section 12 of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972 ('Act' for short). When
notice was issued from the Court of the Rent Control and Eviction Officer,
Aligarh, respondent 2 herein, the appellant entered contest by filing an
affidavit to the affect that he has been living with 13 members of his family
in the premises and rent was being collected from him following the death of
his father Manzoor Hussain. Merely y because Naim had built a house in 1980,
the tenancy in favour of the other heirs of Manzoor Hussain would not terminate
and in such circumstances the premises cannot be held to become vacant and
available for allotment to some other person. The Prescribed Authority did not
accept the contention of the appellant and held that the house in question must
be deemed to have become vacant when Naim, who was a member of the family, had
built a house. Appellant carried a revision before the District Judge,
respondent 1, which was dismissed. The revisional authority placed reliance on
a Full Bench decision of the Allahabad High Court in the case of Smt. Rama Devi
Shakya and Anr. v. The Additional District Judge, Lucknow & Anr(1). The Full
Bench had held;
(1) 1981 Allahabad Rent Cases 305.
909 "Where one of the co-tenants builds
or otherwise acquires another residential building within the meaning of sub-s.
(3) of s. 12, the tenant, namely, the entire set of co-tenants shall be deemed
to have ceased to occupy the building under his sub-tenant. It cannot be that
the share belonging to the co-tenant in default alone shall fall vacant."
The writ application filed by the appellant before the High Court was summarily
dismissed as the Court was of the view that it was not a fit case for
interference under Art.
226 of the Constitution.
At the hearing the decision of the Full Bench
of the Allahabad High Court In Rama Devi's case was placed before us. An
attempt was made on the appellant's side to show that the interpretation put on
s. 12 (3) of the Act was erroneous and a wrong conclusion had been reached
Counsel for respondent 3 appointed by the Supreme Court Legal Aid Committee
supported the judgment and relied upon its conclusion for upholding the
decision of the learned District Judge.
Reference to some of the provisions of the
Act becomes necessary before we proceed to make an analysis of the full Bench
decision. Chapter III of the Act makes provision for regulation of letting.
Section 11 provides that "no person shall let any building except in
pursuance of an allotment order issued under s. 16". Section 12 makes
provision for deemed vacancies of buildings in certain cases. Sub-s. (3) of s.
12 is relevant for the disposal for the appeal. That sub-section runs thus:
"In the case of a residential building,
if the tenant or any member of his family builds or otherwise acquires in a
vacant state or gets vacated a residential building in the same city,
municipality, notified area or town area in which the building under tenancy is
situate, he shall be deemed to have ceased to occupy the building under his
tenancy :.. " As the words "tenant" and "family" occur
in sub-s. (3), reference to the definitions of these two terms is also
relevant.
910 'Tenant' and family have been defined in
clauses (a) and (g) respectively of s. 3. 'Tenant' according to the definition
in relation to a building means: a person by whom its rent is payable, and on
the tenant's death-(1) in the case of a residential building, such only of his
heirs as normally resided with him in the building at the time of his death;
(2) in the case of a non-residential
building, his heirs." 'Family' in relation to a landlord or tenant of a
building, means: "his or her-(i) spouse; (ii) male lineal descendants:
(iii) such parents, grand parents and any
unmarried or widowed of divorced or judicially separated daughter or daughter
of a male lineal descendant, as may have been normally residing with him or
her, and includes, in relation to a landlord, any female having a legal right
of residence in that building." There is no dispute that along with
Manzoor his wife, his three sons and the daughter were living in the disputed
premises. After Manzoor's death, the widow, the three sons and the daughter
continued to live in that house. There is reference to payment of rent in the
order of the Prescribed Authority and in the petition for Special Leave an
assertion has been made that it was the appellant who had been paying the rent
after the death of Manzoor. This plea has not been controverted. In the setting
of things, the appellant being the eldest son, was naturally expected to pay
the rent.
There is material on record to show that
Azeem and Naim were already married and have been living along with their wives
in the house along with other members of the family.
As the definition of 'tenant' indicates, on a
tenant's death his heirs as normally resided with him would also be tenant qua
residential buildings. Therefore, the widow, all the three sons and unmarried
daughter became tenants when the Act came into force notwithstanding the fact
that Manzoor had died in 1969.
We may now revert to s. 12(3) of the Act.
Admittedly we are concerned with a residential building. It is the case of the
Prescribed Authority and there is no dispute about it, that Naim has built a
house in the same city some time in 1980. Naim's building a house and moving
into it cannot wipe out the interest of the widow, other two sons, including
the appellant and the daughter, if in their own right they were tenants by
satisfying the requirements of the definition. The words 'if the tenant or any
911 member of his family' obviously mean, in the facts of the case, Naim and
the members of his family and do not relate to the widow, other two sons and
the daughter of Manzoor. If everyone's interest was to be wiped out, s. 3 had
to provide differently and instead of 'he shall be deemed to have ceased to
occupy the building under his tenancy' as occurring in sub-s. (3) reference
would have been made to all the tenants.
The ratio of the Full Bench decision to which
we shall presently advert and which has been relied upon by the Prescribed
Authority and the learned District Judge, is bound to lead to situations which
could never have been contemplated by the legislature. For instance, if Naim or
Nadeem found inconvenient to live with the other members of family when Manzoor
died and he moved into another house with a view to living separately and the
fact of such a move on his part brought about cessation of tenancy and the
house Manzoor lived in was deemed to have become vacant, the widow, the other
sons and the daughter of Manzoor would immediately find themselves in a very
helpless condition. Or for instance, if one of the sons got an employment in a
Factory located within the same city and for convenience moved into a Factory
quarter for residence, the same result would ensue to the miserable plight of
the other members. Or consider the case of a divorced daughter of the tenant
living with him, when she builds or acquires a separate premises with funds
provided by her ex-husband. No sooner she moves into her house, the father's
tenancy come's to an end. Or take the case of an expanding family. Several sons
come of age are married and many children are born to them.
The accommodation becomes insufficient and
one or two of the sons move into a separate house to ease the situation. If in
such premises, father's tenancy terminates and the daughter which he and
members of his family reside is deemed to have become vacant, the family would
be visited with hardship knowing no bounds. Take the unhappy and miserable lot
of a couple whose infirm son, suffering from a serious malady highly
contagious, is shifted to an independent residence for exclusion. Would that
too lead to termination of tenancy qua the main residential premises ? In an
Act intended to stabilise letting, rent and eviction by regulation, the
legislature could not have evinced such intention.
912 It is true that the legislative purpose behind
s. 12 appears to be in keeping with the scheme of the Act-making available as
much accommodation as possible for allotment to needy persons. That being the
purpose, the legislature could not have intended to render persons
rehabilitated in tenanted premises homeless. In our view, when the Act defines
tenant' and 'family' reference to personal law is irrelevant and the concept of
joint tenancy is foreign.
Now a reference to the Full Bench decision.
The following questions had been referred to the Full Bench for decision:
1. (a) Whether the view expressed in Budh Sen
v. Sheel Chandra Agarwal. 1977 AWC 553, and Ramesh Chand Bose v. Gopeshwar
Prasad Sharma, 1976 AWC 301, to the effect that the heirs of a tenant are
tenants-in-common and not joint tenants, is consistent with the view expressed
by the Supreme Court in Badri Narain v. Rameshwar Dayal, AIR 1951 SC 186 ? (b)
Do such heirs of a tenant become tenants in common inter se but remain joint
tenants qua the landlord ? (c) What is the effect of one such heirs acquiring
another building as mentioned in section 12(3) of U.P.
Act No, 13 of 1972 ? 2. Whether the view
expressed in Shri Nath Tandon v. Rent Control & Eviction Officer, 1979 All
Rent Cases 541, to the effect that a member of the family who acquires another
building should both have been wholly dependent on him for section 12(3) to be
attracted, is consistent with Explanation (b) to s. 12(3) ?" The Full
Bench proceeded on the basis that the heirs become joint tenants and answered
the main problem by saying that if any member of the family of such joint
tenants built or acquired a house in vacant state the tenancy would be deemed
to have ceased. In framing the questions for reference and in answering the
referred questions, the definition of 'tenant was lost sight of. All the heirs
as normally reside with the deceased tenant in the 913 building at the time of
his death become tenants. The definition does not warrant the view that all the
heirs will become a body of tenants to give rise to the concept of joint
tenancy. Each heir satisfying the further qualification in s. 3(a)(1) of the
Act in his own right becomes a tenant and when we come to s. 12(3) of the Act,
the words "the tenant or any member of his family" will refer to the
heir who has become a tenant under the statutory definition and members of his
family. 'Family' having been defined, for convenience if we refer to the facts
of the present appeal qua Naim, the definition would cover Naim's wife, his
male lineal descendants, his mother and those who are covered by clause (iii)
in the definition of family. It would not by any stretching embrace the
appellant or his brother Nadeem and the sister. the Full Bench, in our view,
fell into an error in working on the basis of joint tenancy running counter to
the scheme under the Act. The conclusion reached by the Full Bench, in our view
is, therefore, wholly unsustainable and we cannot extend our agreement to the
conclusion that when one of the members of the family built house or moved into
a vacant premises (other than the tenanted premises in occupation), there was a
deemed cessation of the tenancy and a deemed vacancy occurred of the tenanted
premises.
Now coming to the facts of the appeal, when
Naim built a house and shifted into it, the tenancy of the appellant and his
brother along with their mother and sister did not terminate. They continued to
be tenants in their own right being covered by the definition of 'tenant' and
there is no deemed vacancy as held by the Prescribed Authority, the learned
District Judge and the High Court. The appeal is allowed and the decisions of
the different forums referred to above are set aside with costs through out.
Respondent 2 who by making his order of deemed vacancy gave rise to the dispute
which ultimately required the appeal to be brought up here, in our opinion,
must alone bear the costs. Hearing fee is assessed at Rs. 2,000.
S.R. Petition allowed.
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